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HCAL 77/2022
[2022] HKCFI 867
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 77 of 2022
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Intan Ratnasari |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The Applicant is a 35-year-old national of Indonesia who last arrived in Hong Kong on 13 August 2019 with permission to work as a foreign domestic helper until the expiration of her employment contract on 13 August 2021 or within 14 days of its early termination, but on 22 March 2021 she was arrested by police for making a false representation to an immigration officer and was subsequently convicted and sentenced to prison for 4 months, and upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband and/or his creditor for failing to help him repay his loan.
2. The Applicant was born and raised in Village Nganjuk Sambirejo, Sub-district Tanjung Anon, District Nganjuk, East Java, Indonesia. After leaving school, she went to work in Taiwan as a domestic helper before returning to Indonesia in 2015 when she later married her husband and raised a family with a daughter in her husband’s home in Kediri, Kaliboto, Tarokan, East Java.
3. During the marriage her husband behaved abusively towards the Applicant and would often hit her at will which caused her to become fearful of him. In late 2017 he borrowed a bank loan for his gambling habit, but when strangers claiming to be debt collectors started to come to their home for repayment of his loan, her husband demanded the Applicant to work as a foreign domestic helper in Hong Kong so as to assist him with his loan repayments, and so the Applicant began to work in Hong Kong in 2018 and every month remitted part of her salary to her husband in Indonesia.
4. However, after she was arrested by police in March 2021 and as a result she lost her job and was unable to remit any money to him, her husband threatened on the phone to kill her upon her return to Indonesia, and hence upon her subsequent discharge from prison and was referred to the Immigration Department for deportation, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 31 August 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
5. By a Notice of Decision dated 9 September 2021 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).
6. In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and did not accept that her husband or the debt collectors had any real intention to seriously harm or kill her upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from them, that in any event her problems with them were private domestic or monetary disputes between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 275 million people spread across a vast territory of more than 1.8 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband or the debt collectors to locate her.
7. On 16 September 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 12 November 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 22 December 2021 her appeal was dismissed by the Board which also confirmed the decision of the Director.
8. In its decision the Board accepted the Applicant’s claim of threats from her husband over his loan problem but found no reliable evidence of any real intention of her husband or the debt collector to seriously harm or kill the Applicant, and that in any event it was a private domestic or monetary dispute between them without any official involvement that state/police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other area away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.
9. On 20 January 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.
10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
11. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
12. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.
13. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.
Dated the 24th day of March 2022.
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(K.H. LI)
for Registrar, High Court |
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 24 March 2022
Intan Ratnasari
Applicant’s ref. no.:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 24 March 2022
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 18760/21/9/112/I2221
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1497/21 (Formerly RBCZ 11327/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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